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Cruz v. Credit Control Services, Inc.

United States District Court, E.D. New York

November 8, 2017

YENDY CRUZ on behalf of himself and all others similarly situated, Plaintiff,
v.
CREDIT CONTROL SERVICES, INC. d/b/a CREDIT COLLECTION SERVICES, Defendant.

          MITCHELL L. PASHKIN Attorney for the Plaintiff By: Mitchel L. Pashkin, Esq., Of Counsel.

          MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, P.C. Former Attorneys for the Defendant By: Joseph A. Hess, Esq., Of Counsel.

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT, UNITED STATES DISTRICT JUDGE

         The Plaintiff, Yendy Cruz, (“Cruz” or the “Plaintiff”) initiated this putative class action against Credit Control Services, Inc., d/b/a Credit Collection Services (“CCS” or the “Defendant”), for damages stemming from alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C., 1692 et seq. (“FDCPA”). The Plaintiff contends that the Defendant failed to inform the Plaintiff in a debt collection letter (the “Letter”) that the amount of debt may increase due to pre-judgment interest under NY C.P.L.R. § 5001 and improperly used the name Credit Collection Services in an attempt to collect debt. Further, the Plaintiff alleges that the Letter was an unfair or unconscionable means to collect a debt.

         Prior to its ruling, the Court notes that the Plaintiff's memorandum does not conform to this Court's Individual Rule IV.B., as it fails to include a table of contents for a briefing that is longer than 10 pages. The Court advises the Plaintiff's counsel to conform to this Court's Individual Rules in the future.

         Presently before the Court is a motion by the Defendant, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 12(b)(6) to dismiss the Plaintiff's entire complaint. For the following reasons, the Defendant's motion to dismiss pursuant to Rule 12(b)(6) is granted.

         I. BACKGROUND

         A. The Factual Background

         Unless otherwise noted, the following salient facts are drawn from the complaint and are construed in favor of the Plaintiff.

         The Plaintiff, a natural person, is the recipient of the Letter. Cruz resides at 72 Randall Avenue, Freeport, New York 11520. Complaint ¶¶ 5, 7.

         CCS, the Defendant in this action, is a debt collection agency that is incorporated in the State of Delaware. Its principal place of business is Two Wells Avenue, Newtown, Massachusetts 02459. Id. ¶ 10.

         On or about November 27, 2015, the Defendant sent the Plaintiff the Letter in an attempt to collect an outstanding debt of $166.97. Id. ¶ 13. The Letter, sent on “Credit Collection Services” letterhead, informed Cruz that the “amount of the debt” was $166.97, and that the creditor was Geico Indemnity Company. Further, the Letter stated, in pertinent part: “Once full payment has been posted by this office, your account will be closed and returned to your creditor as paid-in-full.” Id. Exhibit 1. Specific instructions were provided for submitting payment to the Defendant.

         On or about January 7, 2016, the Defendant sent the Plaintiff another debt collection letter (the “January Letter”) in an attempt to collect the Plaintiff's $166.97 debt. The January Letter offered Cruz the opportunity to pay 80% of the amount of the debt in exchange for the settlement of the account. Specifically, if the Plaintiff paid $133.58 to the Defendant, “[the Plaintiff's] account will be closed and returned to [Geico] as settled-in-full.”

         B. The Procedural Background

         On November 28, 2016, the Plaintiff commenced this action against the Defendant in the Supreme Court of the State of New York, County of Nassau, alleging violations of N.Y. General Business Law § 349 and numerous provisions of the FDCPA.

         On April 6, 2017, the Defendant filed a notice of removal to this Court.

         The Plaintiff filed the complaint on May 23, 2017 and attached the Letter as Exhibit 1.

         In a separate case with the same caption, No. 2:17-cv-02590-ADS-GRB (“Cruz II”), the Plaintiff filed an action in the Supreme Court of the State of New York, County of Nassau on January 6, 2017. Cruz II was based on the January Letter and claimed violations of N.Y. General Business Law § 349 and the same provisions of the FDCPA as alleged in this case.

         Cruz II was removed to this Court on May 2, 2017 and that complaint was filed in this Court on May 2, 2017. The Cruz II complaint alleged identical violations of the FDCPA. The Defendant answered on May 16, 2017. On July 10, 2017, an initial conference was held before Magistrate Judge Brown.

         The present motion in this action was filed on June 6, 2017 by the Defendant seeking to dismiss the entire complaint in this action, pursuant to Rule 12(b)(6).

         II. DISCUSSION

         A. ...


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